Do workers have rights?

State of labor law has eroded to the point where employees with grievances have severely limited options

September 03, 2012|By Michael Hayes

For more than 75 years, American workers have had legal rights to work together to improve their jobs and their workplaces. But the effectiveness of these rights has diminished over the past 30 years, and now it's questionable whether they're meaningful at all. Should those rights be revitalized, or should employment rights and policies move in a new direction for the coming years and decades? A presidential election is the perfect time to discuss, debate and ultimately decide this important question. But in the 2012 cycle, the issue seems largely ignored by both campaigns. Still, as workers we have a few questions — and we insist on some answers from both the Republicans and the Democrats:

When an employee is legitimately unhappy in the workplace or with the terms of employment, should he or she have any options but to quit and try to obtain a better job? (A challenging prospect with the unemployment rate over 8 percent.) Should the law prevent an employer from moving employees' jobs overseas to punish employees if they dare ask for better terms and conditions of employment? And why did unions' rating of the voting record of GOP vice-presidential nominee Paul Ryan (whose family's construction business has employed union-represented workers for decades) drop from 26 percent as recently as 2007 to 0 percent last year?

The current disregard of workers' rights and interests is all the more surprising — and disappointing — because the strength of worker rights has a direct impact on other key questions, such as all Americans' standard of living, their retirement security and income, and access to health care. As worker rights have eroded, these other aspects of Americans' quality of life have also declined. And that's no coincidence.

Most American workers believe, according to recent studies, that they have the right to complain, protest and demand changes at their job without being fired or disciplined. Those rights exist, but they aren't rooted in the First Amendment as some employees believe; the First Amendment and the Bill of Rights do not cover non-government employers. But since the 1930s, under the federal National Labor Relations Act (NLRA), whenever two or more employees complain or protest or demand from their employer changes in the terms of their job and/or the conditions of their employment, their employer cannot retaliate against them for that. The employer does not have to give the employees what they're demanding or give them anything at all. But the employer has to respect employees' rights to seek improvements.

Although workers have been guaranteed these rights for three-quarters of a century, that doesn't mean workers can count on them if their employer (or any supervisor) wants to punish employees for expressing views. First, because worker rights are not granted by the Constitution, they can be taken away any time a majority in Congress chooses to do so. And in recent years, many leading members of Congress have announced their desire to do just that. In addition, worker rights are only as safe and strong as the interest and ability to protect them of the NLRB, the agency given exclusive authority to enforce those rights. The NLRB's resources and remedies to guard the rights of workers are limited under the best of times, and the past couple years — when Congress has failed or refused to confirm most of its top officials and has subjected the agency to nearly constant criticism and pressure — are far from the best of times.

The possible fate of worker rights might be revealed by the recent history of American labor unions, because the NLRA gives employees the right to form, support and be represented by unions or other labor organizations. In the 1950s, more than a third of nongovernment employees in the U.S. were union members, and that percentage remained higher than 25 percent until the early 1980s. Many employees not represented by a union worked for employers who, to avoid unionization, matched or nearly matched union compensation and protections. Major corporations, like IBM, Kodak, Texas Instruments and Xerox, functioned under this model.

What happened?

The influence of union agreements led to features of American workplaces and life that are familiar to most Americans, though for many those things no longer exist. For decades, pay increases were annual or at least regularly granted. Most American workers also had guaranteed pensions or other retirement payments to be provided by the employer, a key part of the "three-legged stool" (Social Security, retirement benefits of employment, and personal savings) approach to lifelong earnings. Employer-provided health insurance also became common.

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